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Religion and the Law

Islamic Prenuptial Agreements in American Courts

The key is that they are agreements, enforceable under American law as non-religious agreements are.


From Parbeen v. Bari, decided yesterday by the Florida Court of Appeal (Fourth District), in an opinion by Judge Alan Forst, joined by Chief Judge Burton Conner and Judge Jeffrey Kuntz:

This case concerns a prenuptial agreement made by the parties on September 14, 2015, and its impact on their subsequent divorce. In lieu of a conventional prenuptial agreement, the parties opted instead to enter a type of traditional Islamic prenuptial contract known as a "Mahr." Although the agreement was entered into in Bangladesh, neither party claims that it should be interpreted under the secular laws of that nation.

The parties' Mahr agreement is only two pages long and contains few legally operative clauses other than an explicit promise by Former Husband to pay Former Wife fifteen lac Bangladeshi Taka ("15,00,000" Taka). Five lac Taka would be paid upon marriage, and ten in the event of a divorce. {The trial court determined that "10,00,000" Taka had a United States Dollar value of $11,772.43. [A "lac" or "lakh," on the Indian subcontinent, means 100,000, especially with regard to money; 100 lakh, which is to say 10,000,000, is a "crore." -EV]} …

The trial court concluded that the Mahr generally limited Former Wife's recovery to the stated amount, but the Court of Appeals disagreed:

Former Husband and Former Wife both claim that the Mahr agreement is enforceable under Florida law. They are correct in this assertion. We have previously stated that prenuptial agreements are enforceable if they were entered into freely—even if the agreement is objectively unreasonable. While Florida caselaw regarding Mahr agreements is sparse, the Second District has held that they are enforceable as prenuptial agreements. See Akileh v. Elchahal (Fla. Ct. App. 1996) ("[A Mahr's] secular terms are enforceable as a contractual obligation, notwithstanding that it was entered into as part of a religious ceremony." (quoting Aziz v. Aziz (N.Y. Sup. Ct. 1985))).

Here, the parties' primary point of disagreement concerns how the terms of the Mahr agreement should be interpreted. Former Husband claims that, under traditional Islamic ("Shari'a") law, a Mahr agreement functions as a type of insurance meant to protect a dependent spouse in the event of a divorce. According to Former Husband, concepts such as equitable distribution and alimony are foreign in Islam and, outside of the distribution of Former Wife's equitable share of the marital home, the Mahr should be read as the entirety of Former Wife's recovery. Former Wife, on the other hand, points to the total lack of language in the Mahr agreement stating an intent to abrogate traditional notions of equitable distribution and temporary support.

Akileh held that "Florida contract law applies to the secular terms of [a Mahr agreement]." Thus, while the parties to a prenuptial agreement—Islamic or secular—may contract away their traditional marital rights, they must do so in a way that comports with Florida law, which has a rebuttable presumption in favor of equitable distribution of property in the event of a divorce.

To overcome that presumption [under Florida law], the prenuptial agreement's plain language must unambiguously express a desire to waive equitable distribution. Overcoming the presumption in favor of equitable distribution requires more than a "boilerplate" reference to waiver. Furthermore, "[t]he court may resort to rules of construction and extrinsic evidence only where the contractual language is ambiguous." The same rules of contractual analysis apply to any prenuptial waiver of temporary support….

In the instant case, the Mahr agreement's plain meaning does not unambiguously express a desire to waive equitable distribution or temporary support. The Mahr agreement consists of a two-page pre-printed form with relevant blanks filled in by typewriter. Most of the information contained therein concerns the personal and familial details of the couple, in addition to the date, witnesses, and other procedural matters. Under "amount of dower," the agreement reflects the following insertion: "15,00,000—(FIFTEEN LAC) TAKA ONLY," five lac of which was to be paid at the time of marriage. The Mahr agreement otherwise contains no reference to distribution of the couple's past, present, or future property. As a result, the Mahr agreement cannot overcome the strong public policy in favor of equitable distribution and, if circumstances merit, temporary support.

Former Husband's answer brief provides a detailed history of Mahr agreements, characterizing it as a traditional Islamic legal instrument intended to provide brides with a modicum of support in the event of a divorce. According to Former Husband, concepts such as the equitable distribution of property and temporary spousal support do not exist under Shari'a law.

However, according to Akileh, Florida contract law applies to the secular terms of a Mahr agreement, and the Mahr agreement in this case does not bar Former Wife from seeking temporary support, alimony, or the equitable distribution of property. It states only that Former Husband is to pay Former Wife ten lac Taka upon the dissolution of their marriage. Consequently, the trial court erred when it held that the Mahr agreement barred Former Wife from seeking additional forms of distribution and support….